Before Roe V. Wade by Linda Greenhouse and Reva B. Siegel
Roe and Its Aftermath
Forty years after the Supreme Court’s Landmark Decision, Abortion Remains a Hot Button Political Issue
Linda Greenhouse and Reva B. Siegel Explore the Roots of the On-Going Conflict
In January 1973, the Supreme Court declared unconstitutional Texas’s 19th century abortion statute and Georgia’s more recent “ALI”-style legislation. The Court rested its decision on the right to privacy, found in Griswold v. Connecticut (1965) to protect the use of contraceptives. Roe v. Wade ruled that the right to privacy protected a woman’s decision in consultation with her physician whether to carry a pregnancy to term. The Court held that the unborn were not “persons” under the Fourteenth Amendment but that government had a constitutionally weighty interest in regulating the abortion decision to protect potential life. The Court explained that the strength of this interest corresponded with the stage of pregnancy. While the state was prohibited from restricting a woman’s right to abortion during the first trimester of pregnancy, it was permitted to regulate abortion “in ways that are reasonably related to maternal health” in the second trimester, and could constitutionally proscribe abortion after the point of “viability” (that is, when a fetus was capable of surviving outside the womb) except if doing so would endanger the life or health of the pregnant woman.
Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)
Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy.
Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life. Instead, Roe observed:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in language that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance. In Roe, the Court states:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
.... This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
....The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical.
This form of talk in Roe reflected modes of reasoning current at the time of the opinion. The recommendations of the Rockefeller Commission in 1972 presented women as having a “conscience” guiding their decisions about abortion, but nonetheless emphasized that women make decisions with their doctors.
Gallup polls in the summer of 1972 also expressed support for decriminalization in terms that presented women as making decisions with their doctors’ guidance. Gallup reported that “Two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.” Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary antiabortion movement.
If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade.
In the period between 1970 and 1972, even as public support for decriminalization was continuing to grow, bitter conflict over abortion had already begun. The story of decriminalization in New York and Connecticut shows that, even where opponents of abortion’s liberalization were numerically outnumbered, they were single-issue focused and passionate in moral conviction. In the period before Roe, the Catholic Church led opposition to decriminalization, organizing to support and punish legislators who voted for abortion’s liberalization. The fact that the Church and the burgeoning right-to-life organizations were encouraging single-issue voting around abortion caught the attention of politicians—and not only state legislators. Even as Catholics were working to build institutions and arguments opposing abortion in secular and nonsectarian terms, abortion’s very identification as a “Catholic” voting issue (however Catholics were divided about abortion, in fact) made the issue of interest to strategists building coalitions for the national political parties during the 1972 presidential campaign.
And so, by 1972, abortion was beginning to fi nd a life in national party politics. Republican Party strategists seeking to persuade Catholic voters and other so-called social conservatives to abandon their traditional alignment with the Democrats and join the Republican cause began to incorporate arguments against abortion rights into their case against the 1972 Democratic presidential nominee, George McGovern. Abortion rights, in this view, symbolized the new morality—a problematic “permissiveness” that afflicted the nation. Those who tarred McGovern as the “triple-A” candidate who favored amnesty, abortion, and acid may have suggested more of a difference between McGovern’s position on abortion and that of Republican nominee Richard Nixon than existed in fact; but the anti-McGovern arguments nonetheless helped reframe abortion’s meaning.
Triple-A claims about abortion had little to do with the concerns motivating public health reformers (who spoke of back alleys and coat hangers) or the claim advanced by religious opponents of abortion that abortion was murder. But the triple-A claim had much to do with feminist arguments for abortion repeal. Triple-A attacks on McGovern condemned abortion rights as part of a permissive youth culture that was corrosive of traditional forms of authority. The objection to abortion rights was not that abortion was murder, but that abortion rights (like the demand for amnesty) validated a breakdown of traditional roles that required men to be prepared to kill and die in war and women to save themselves for marriage and devote themselves to motherhood. Phyllis Schlafly’s attack on abortion never mentioned murder; she condemned abortion by associating it with the Equal Rights Amendment (ERA) and child care.
These shifts in the abortion right’s meaning were accelerating in 1972, as the ERA was sent to the states for ratification, and as the question of who should govern the nation was reverberating during the primaries and through the general election. But it is not clear whom these claims actually reached in the period before Roe. Th e claims reframing abortion that we have examined were designed to mobilize Catholic and conservative voters. Patrick Buchanan’s “assault book” advised the president’s campaign to send anti-abortion messages to Catholics and the National Right to Life Committee convention; and Phyllis Schlafl y—who had worked for Barry Goldwater in the 1964 election—sent her Phyllis Schlafly Report to a network of conservative readers. Th e reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)
In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.”
During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not fi nd the support they needed, even among religious leaders. In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even aft er Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms.
When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.”
Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals,the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics.
The decades of struggle that followed Roe—between the pro-life and prochoice movements and between the Republican and Democratic parties—came deeply to affect the Court and to infuse the Court’s reasoning about abortion with a much clearer expression of the convictions of the Americans arrayed in passionate support and opposition to the decision.
The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.”
With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe.
Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court.
In Gonzales v. Carhart in 2007, the Court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act of 2003. The law had been devised by the right-to-life movement to focus attention on abortions that doctors perform late in pregnancy for medical reasons; the law was designed to provoke public unease with abortion, and it succeeded. Doctors developed the regulated procedure as safer for the woman under some circumstances; abortion opponents succeeded in portraying the procedure as a step from infanticide.
The five justices in the majority insisted that Congress could regulate the method doctors employed in later-term abortions in order to differentiate abortion and infanticide, and so express respect for human life. At the same time, the opinion reaffirmed a woman’s right to terminate her pregnancy before viability, as spelled out in Casey. But while in Casey the Court had, at last, placed women at the center of the abortion decision, in Carhart the Court spoke less clearly. To the majority, led by Justice Anthony M. Kennedy, a woman seeking to terminate a pregnancy needed the state’s protection against making an unwise choice that she would come to regret. The four dissenters, led by Justice Ruth Bader Ginsburg, recalled Casey’s understanding that the abortion right vindicates women’s equality and liberty as citizens, objected that the majority had reverted to a view of women as not fully capable of acting in their own best interests.
The future of abortion rights under the United States Constitution remains uncertain. The Supreme Court will again speak to the question, but the record suggests that it is not likely to have the last word. The future lies in the Court’s ongoing dialogue with the American people. And the documents that tell that story remain to be written.
This article is reprinted, with permission, from Before Roe V Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling by Linda Greenhouse and Reva B. Siegel, Kaplan Publishing, June 2010.
